Hamblen v. Wirsching — 138 N.Y.S. 1119

Majority

p. 1119

HAMBLEN v. WIRSCHING.

(Supreme Court, Appellate Term, Second Department.

March, 1912.)

Headnote

Appeal from Municipal Court, Borough of Brooklyn, Third District. Action by Joseph P. Hamblen against George Wirsching. From a judgment for plaintiff,' defendant appeals. Reversed, and new trial ordered.

Francis B. Wood, of New York City, for appellant.

S. M. & D. E. Meeker, of Brooklyn, for respondent.

The action is to recover nine months’ rent, from July 1, 1910, to March 31, 1911, inclusive. The answer is a general denial. There was proof in the case, received without objection, that the defendant paid $126.-50 to the plaintiff during that period. There is evidence that there was a prior indebtedness for rent. There was some evidence that the payments made by the defendant were to be applied partially upon the current rent and partially upon the prior indebtedness. In contemplation of the pleadings, the evidence returned is too incomplete and unsatisfactory upon which to rest the determination made by the court below, which determination may not conclude the parties with reference to this prior indebtedness. Justice requires that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.